Legal Alerts Sep 19, 2017

SB 649 Barely Passes Out of California Legislature

Governor has Until Oct. 15 to Veto Controversial Small Cell Bill

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SB 649 passed the California Assembly and Senate in the last week of the legislative session with few votes to spare, and is on Gov. Jerry Brown’s desk for consideration. The bill curtails regulatory authority over small cells and gives wireless providers a significant advantage over local government in negotiating the placement of small cells in the public right of way and on public property. (BB&K held a free webinar on this on Sept. 20 - click here to view it.)
 
The bill has faced growing controversy since its introduction in February. All year long the wireless industry had rolled over opposition from cities and counties by taking amendments that appeared to many legislators to address opposition concern while, in fact, doing little to change the bill. Initially, it appeared to be on track for easy passage after getting through the Senate and several Assembly committees before the summer legislative break. But over the summer, the bill amassed massive local government opposition and several negative editorials. Then in September, labor groups joined the opposition, and a robust opposition campaign succeeded in casting doubt on the bill’s passage.
 
SB 649 did eventually pass the Assembly on Sept. 13, but only after a difficult vote that had Republicans and Democrats on both sides, and the Speaker of the Assembly, staying off. The bill needed 41 votes to pass and received only 46, with 16 legislators voting against and 17 refusing to vote. Short of stopping the bill outright, it was a good outcome for the opponents in that it demonstrated real doubt on the part of the Legislature. A similar scenario played out in the Senate on the final vote, or “concurrence,” where an amended bill must return to the house of origin for an up or down vote. It needed 21 votes and only received 22, with 10 senators voting against and eight staying off. By contrast, the initial approval by the Senate at the end of May had tallied 32 votes in favor, one opposed, and seven staying off. The Senate concurrence vote did split along party lines with all but one Republican, who abstained, voting in favor.
 
As the bill awaits a decision by the Governor,  opponents feel that the narrow vote margin supports their request for a veto. Brown has until Oct. 15 to act. While a major thrust of local government opponents has been that the bill is inherently bad policy that cannot be fixed and is deserving of a veto on the merits, others can be expected to argue that, even if there is support for the bill, it should still be vetoed because of the unintended consequences that arise from the way the bill is written.
 
Brown is famously unpredictable, so it is pointless to speculate about the likelihood of a veto. However, there are some positive indications that at least the controversy over the bill has caught the Governor’s attention. For example, Best Best & Krieger LLP formed a lobbying coalition, Protect Our Local Streets (POLS), to give local governments a better chance in the legislative process, and this coalition is lobbying against SB 649. When the BB&K lobbyist asked for a brief meeting with the Governor’s staff to discuss some amendments offered by POLS, he was kept for an hour-long meeting that covered every part of the bill in significant detail. Another encouraging sign for the opponents is that the Department of Finance opposed the bill before the last Assembly committee to hear testimony on the bill. That’s not conclusive, but Finance would have likely checked with higher ups in the administration before taking a public position, given the publicity surrounding the bill.
 
If the Governor does sign SB 649, it will take effect Jan. 1. If he vetoes it, what happens next will depend on the veto message. He could say the bill has merit but needs to be improved, which would invite a reintroduction of the bill next year, or he could say it’s bad policy for California, which would kill the bill at least until he’s out of office.
 
Cities and counties concerned about the impacts of this bill should contact the Governor’s office.
 
For more information on Protect Our Local Streets or this bill, please contact one of the authors of this Government Relations Alert listed at the right in the firm’s Telecommunications or Government Relations practice groups, or your BB&K attorney.
 
Please feel free to share this Legislative Alert or subscribe by clicking here. Follow us on Facebook @BestBestKrieger or on Twitter @BBKlaw.
 
Disclaimer: BB&K Legislative Alerts are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information in this communiqué.

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